Content Regulation / Censorship, Hate Speech, Indecency / Obscenity, Religious Freedom
Jersild v. Denmark
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The European Court of Human Rights found that the banning of a theatrical production in Malta of the play “Stitching” by Scottish playwright Anthony Neilson was a violation of the right to freedom of expression. The ban was issued by the Maltese Board for Film and Stage Classification (Board) because the play was deemed to be blasphemous, insulting to the victims Auschwitz, and portraying dangerous sexual perversion. The ban was subsequently upheld by the Constitutional Court of Malta. The European Court of Human Rights found that the law relied on by the Board to ban the production was not of sufficient quality for the interference with the right to freedom of expression to be deemed “prescribed by law” under Article 10 of the European Convention on Human Rights. The European Court noted that the regulations relied on by the Board left room for them to exercise unfettered power in their classification of stage productions. Since the judgment of the European Court, in September 2018, the play was performed by the theatre company in Malta for the first time.
The case originated from an application lodged against Malta by a company that produced theatrical performances in Maltese theatres, Unifaun Theatre Productions Limited (the first applicant), two directors of the company, Mr. Adrian Buckle (the second applicant) and Mr. Christopher Gatt (the third applicant), the artistic director of the theatre company’s production of “Stitching”, Ms. Maria Pia Zammit (the fourth applicant), and an actor who was to perform in a production of “Stitching”, Mr. Mikhail Acopovich Basmadjian (the fifth applicant).
On December 23, 2008, the company filed an application to the Board for Film and Stage Classification (Board) in order for an age rating certificate to be issued for their performance of the play “Stitching” by Scottish playwright Anthony Neilson. The play tells a story of an unfaithful couple, Stewart and Abby, who spend part of the play debating whether to have a child when Abby falls pregnant. They decide to have the child to save the relationship but, sometime later, when the child dies their relationship disintegrates. When they meet again, they can only do so in a “perverted fashion”, with Abby posing as a prostitute. [para. 23]
On January 20, 2009, the Board imposed a ban on the play being performed in Malta and no reasons were provided for this decision. Following correspondence with the Board, the company was informed that the original decision was reconfirmed. In a letter sent to the company on January 3, 2009, and deposited with the Commissioner of Police, the reasons why the production was banned were listed as follows:
The Board concluded that the play “pushed beyond the limits of public decency.” [para. 13]
On March 3, 2009, the applicants brought the case before the Maltese Constitutional Court complaining that the ban had constituted a violation of Article 10 of the European Convention on Human Rights. The Court heard from a number of witnesses, including the author of the play. Those witnesses who objected to the play found a number of references particularly offensive. First was the reference to one of the characters, Stewart, masturbating to images of Auschwitz when he was younger. Second were references to prolific child murderers, the Moors Murderers (Ian Brady and Myra Hindley) and Fred and Rose West. They also made reference to the use of swear words in conjunction with religious words. It was during these proceedings that the Chairman of the Board first presented the guidelines that were to be followed when applying the Cinema and Stage Regulations.
On June 28, 2010, the Civil Court in its constitutional competence rejected the applicants’ claim in an eighty-two-page judgment. According to the Constitutional Court, the play contained several scenes that affected the morality and decency of the entire production, and it was within the Board’s authority to assess that in line with the Cinema and Stage Regulations. It considered that the Board was correct to conclude that the play in its entirety was offensive to Maltese society. The Court further considered that an extensive use of vulgar, obscene and blasphemous language was used to “highlight perversions, vilify the right to life and the right to freedom from inhuman and degrading treatment, vilify the respect towards a woman’s dignity.” [para. 42] Moreover, the Constitutional Court went on by noting, among other things, that “[a] democratic society, while being tolerant, could not permit its values to be turned on their head in the name of freedom of expression” and “blasphemy was a contravention, and a person could not be immune from punishment simply because he or she was acting on stage.” [para. 42]
On appeal, by a judgment of November 29, 2012, the Constitutional Court confirmed the first-instance judgment and ordered the applicants to pay all costs. It considered, among other things, that “freedom of expression had limits and that it was accompanied by duties and responsibilities. Both the Convention and the Constitution provided for inter alia the protection of morals and the reputation and rights of others, and the Maltese Constitution also included public decency, in the relevant provision.” [para. 46] It further noted that “there were phrases which constituted disparaging and insolent remarks towards more than one belief, towards women and towards the suffering of the Jews in the Second World War.” [para. 47] In the Constitutional Court’s view, the limits of decency had been breached due to the blasphemy (an offence under Maltese law) and to the vilification of the dignity of a people, of a woman, of children, and of the human being, as well as the extreme glorification of sexual perversion. The Constitutional Court concluded that these instances were so strong that they affected the play in its entirety and prevailed over any genuine aim presumably intended by the play. In the court’s view while “art was a wide concept covering any type of manifestation of expression, it could not include language which was obscene and despised the trauma of a genocide, and which, in itself, was against the laws of the country. For a strong moral message to be portrayed it was possible to cause discomfort and annoy other persons, but not to the extent of insulting them because of their beliefs, their people, or simply because they were a woman or a child”. [para.49] Then, recalling that it was the duty of the State to protect the morality of the country, the Constitutional Court considered that the Board had fulfilled its duty. It further noted that “under the laws in force, the Board could ban the play, as opposed to classifying it for a mature audience. In any event it considered that adults, who could chose to watch the play in such a case, would also be deserving of protection, and thus limitations could also be necessary in such cases. It highlighted the states’ duty to preserve the sensitivities of the silent citizen (as opposed to the vociferous ones, who inundated media forums) and considered that no remedy after the performance could heal any harm already done to society.” [para. 51]
Relying on Article 10 of the European Convention on Human Rights (freedom of expression), the applicants complained that the ban on the production of the play “Stitching” violated their right to freedom of expression. The Government of Malta argued that the Board acted in accordance with the Cinema and Stage Regulations applicable at the time. They also argued that the banning of the play was a proportionate measure necessary in a democratic society for the protection of public morals.
The European Court of Human Rights (Court) began by establishing that the ban constituted an interference with the applicants’ right to freedom of expression. Then, the Court had to examine whether the interference had met the requirements set forth in Article 10(2) of the European Convention on Human Rights (Convention), namely whether it was “prescribed by law”, in pursuit of a legitimate aim, and “necessary in a democratic society”.
The Court first noted that although the Maltese Government had relied on the Cinema and Stage Regulations and the Guidelines for Film Classification, it did not provide enough explanation on how or in what way the Guidelines were accessible to the public. In fact, the Government did not dispute the applicants’ argument that the Guidelines only appeared for the first time in the domestic proceedings. The Court further noted that the copy of the Guidelines submitted during the domestic proceedings and later submitted to the Court contained no date or any information as to its publication, circulation or other means of dissemination. Therefore, the Guidelines that constituted the legal basis for banning the play did not meet the accessibility requirement for it to be “provided by law”.
The Court went on to note that the Cinema and Stage Regulations empowered the Board to classify stage productions on the basis of Guidelines issued by the Board. With the guidelines being inaccessible, it followed that the precision of the relevant provisions of the Cinema and Stage Regulations was questionable as well. The Guidelines were intended to elaborate the meaning of the criteria for classifying stage and film productions, such as the levels of morality, decency and good general behavior. Therefore, in the absence of Guidelines, “the criteria mentioned in Regulation 42 (2) (a), left room for an unfettered power since the law did not indicate with sufficient clarity the scope of any discretion conferred on the authority and the manner of its exercise”. [para. 84] The Court further considered that the Cinema and Stage Regulations did not provide for the possibility of a total ban of theatrical performances (although such a ban could be imposed in relation to films). Therefore, whether banning a stage production was at all possible under the Cinema and Stage Regulations was not precise and foreseeable.
The Court went on by observing that even if the relevant provisions in relation to the banning of films extended to stage productions, the procedure provided for the review of such decisions was not complied with in this case (only one person reviewed the decision to ban “Stitching” rather than the required three under the provision). Therefore, the decision-making procedure which led to the interference with the applicants’ rights could not be accepted as a procedure “prescribed by law”. [para. 86]
The Court concluded that the law relied on was not of a sufficient quality and the interference was a result of a procedure that was not “prescribed by law”. Since the interference was not lawful within the meaning of the Convention, the Court considered that it was not necessary to determine whether the interference was “necessary in a democratic society”. The Court found that there had been a violation of Article 10 of the Convention.
In awarding damages, the Court noted that despite the lack of clarity in the law as to whether a total ban might be possible, the applicants should have waited for a decision on the specific classification of the play before venturing into theatre bookings, promotional material and advertisements. It also considered that performance rights are likely to be required before such a procedure is undertaken at a cost, no matter its outcome. Thus, the Court did not discern any causal link between the violation found and the pecuniary damage alleged. Therefore, it rejected this part of the claim. On the other hand, making its assessment on an equitable basis, the Court awarded the applicants EUR 10,000, jointly, in respect of non-pecuniary damage.
Concurring opinion of Judge Kūris
In his concurring opinion, Judge Kūris opined that the finding that the Guidelines were inaccessible (and, therefore, not “prescribed by law”) would have been sufficient to find an Article 10 violation without further need to examine the other “various” considerations. He also took issue with the broad power of the Board to consider the literary merit of a production. He stated that “the Board’s power to rule on the “literary, artistic or educational merit” of productions, “if any”, and to ban some of them as “not fit for exhibition”. This privilege, so indiscriminately worded, smells of discretionary censorship, especially (but not only) having regard to the Board’s (whatever its members’ professional and moral merits) appointment by the Parliamentary Secretary for Culture and Local Government, that is to say, by members of the Government.” [para. 2]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression since the European Court of Human Rights (Court) found a violation of the right to freedom of expression where a company was banned by the Maltese Board for Film and Stage Classification from performing a theatrical play on the grounds that it was blasphemous, not respectful of the victims of Auschwitz and portrayed dangerous sexual perversion. The Court found that there was no legal basis for a ban on a stage production like that in the case, and that the guidelines for classifying films and stage productions were inaccessible to the public. This was the first play to be banned in Malta. Following the decision of the Court, it was performed in Malta for the first time in September 2018.
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